MICHAEL FALCO v. NEW JERSEY DEPARTMENT OF CORRECTIONS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6018-08T1

MICHAEL FALCO,

Appellant,

v.

NEW JERSEY DEPARTMENT

OF CORRECTIONS,

Respondent.

____________________________

December 7, 2010

Submitted: November 17, 2010 - Decided:

Before Judges Sapp-Peterson and Fasciale.

On appeal from the Department of Corrections.

Michael Falco, appellant pro se.

Paula T. Dow, Attorney General, attorney for respondent (Ellen M. Hale, Deputy Attorney General, on the brief).

PER CURIAM

Michael Falco appeals from a June 9, 2009 order of the Department of Corrections (DOC) upholding and modifying disciplinary sanctions imposed by a hearing officer. We affirm.

Falco is currently an inmate at South Woods State Prison. On May 28, 2009, Senior Corrections Officer D. Reid observed Falco in a recreation yard on two separate occasions in violation of N.J.A.C. 10A:4-4.1, which provides in part:

(a) An inmate who commits one or more of the following numbered prohibited acts shall be subject to disciplinary action and a sanction that is imposed by a Disciplinary Hearing Officer or Adjustment Committee with the exception of those violations disposed of by way of an on-the-spot correction[:]

. . . .

.402 being in an unauthorized area

Officer Reid observed Falco at 6:00 p.m. and gave Falco an "on-the-spot" correction (OTSC) charge for entering the recreation yard while serving a loss of recreation privilege.1 At 7:52 p.m., Officer Reid observed Falco a second time in the recreation yard. As a result, Falco was charged with violating .402 of N.J.A.C. 10A:4-4.1(a).

A hearing officer found Falco guilty and stated:

Falco denies guilt . . . Falco was observed in the [r]ec [y]ard on 5-28-09 while serving [a] LORP [s]anction from 5-24-09 to 5-28-09. [Falco] also rec[eived] an on the spot [two] hours earlier for doing the same. Falco states "the log books had the wrong dates." The fact that he had received an OTSC [two] hours earlier for being outside did not deter him from violating the rules.

On June 2, 2009, the hearing officer sanctioned Falco with seven days detention, thirty days LOCT, and thirty days LORP. On June 9, 2009, the DOC modified the decision of the hearing officer and reduced the number of detention days from seven to five days.

On appeal, Falco argues that (1) he was not allowed "counsel substitute; (2) he was not permitted to present evidence; (3) the investigation at the hearing officer level was incomplete; (4) the DOC should have conducted a further investigation; and (5) the log book was altered.

Our review of a DOC decision is limited. We will only reverse when the agency's decision is found to be arbitrary, capricious, or unreasonable, or unsupported by substantial credible evidence in the record as a whole. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980); see also In re Taylor, 158 N.J. 644, 657 (1999) (a reviewing court shall uphold an agency's findings, even if it would have reached a different result, as long as sufficient credible evidence in the record exists to support the agency's conclusions).

In a disciplinary proceeding an incarcerated inmate is not entitled to the full range of rights as that enjoyed by a defendant in a criminal prosecution. Avant v. Clifford, 67 N.J. 496, 522 (1975). "Prisoners' rights 'are abridged to the extent necessary to accommodate the institutional needs and objectives of prisons.'" Jenkins v. N.J. Dep't of Corr., 412 N.J. Super. 243, 252 (App. Div. 2010) (quoting McDonald v. Pinchak, 139 N.J. 188, 194 (1995)).

An inmate is entitled to (1) written notice of the charges at least twenty-four hours prior to the hearing; (2) an impartial tribunal; (3) a limited right to call witnesses and present documentary evidence; (4) a limited right to confront and cross-examine adverse witnesses; (5) a right to a written statement of the evidence relied upon and the reasons for the sanctions imposed; and (6) where the charges are complex, the inmate is permitted the assistance of a counsel substitute. Avant, supra, 67 N.J. at 525-33. Each of these rights was provided to Falco and we detect no diminution of his opportunity to defend the charge to the full extent permitted by our law.

Falco received notice of the charges at least twenty-four hours prior to the hearing; called one witness at the investigation level (Inmate Collazo) but did not call that witness at the hearing; declined to cross-examine witnesses; reviewed the adjudication sheets and evidence considered by the hearing officer; and pled not guilty. An impartial hearing officer conducted the disciplinary hearing and issued a written statement of the evidence relied on and the reasons for the sanctions imposed. Thus, Falco received the procedural due process to which he is entitled.

Falco was not entitled to "counsel substitute" for violating section .402 of N.J.A.C. 10A:4-4.1. Falco was not charged with an asterisk offense which requires "counsel substitute" for an inmate, N.J.A.C. 10A:4-9.12(a), is not illiterate and was capable of collecting and presenting evidence on his own behalf, N.J.A.C. 10A:4-9.12(b), and never requested "counsel substitute," N.J.A.C. 10A:4-9.12(c).

Falco's adjudication of guilt was based on substantial evidence. As noted in In re Application of Hackensack Water Co., 41 N.J. Super. 408, 418 (App. Div. 1956), substantial evidence is "such evidence as a reasonable mind might accept as adequate to support a conclusion." The phrase has also been described as "evidence furnishing a reasonable basis for the agency's action." McGowan v. N.J. State Parole Bd., 347 N.J. Super. 544, 562 (App. Div. 2002).

Investigator Sergeant Dilks confirmed with F-1 Control that Falco's LORP was still active on May 28, 2009. At 6:00 p.m. Officer Reid gave Falco an OTSC for being in the recreation yard when he was not authorized to be there. Falco ignored the OTSC and was observed two hours later in the yard. There was substantial, credible evidence to support the DOC's decision to impose disciplinary sanctions on Falco.

1 Falco was not permitted in the yard because he was serving a five-day loss of recreation privilege (LORP) for a previous infraction for which he had received an OTSC.